The case, the civil liberties advocates contend, is a troubling instance of how the government’s more aggressive border search policies in the post-Sept. 11 era are being used not to enforce customs or immigration laws, but to advance government investigations of third parties and to collect information about people’s political activities.
The seizure of House’s laptop was unconstitutional, they argue, because it contained such a vast amount of personal material — including private membership lists — that reviewing it would be akin to probing House’s thoughts. They say that the government should have a suspicion of a crime and a “border-related” justification to conduct such searches.
A Justice Department spokesperson declined to comment.
But a former senior DHS policy official said the plaintiff has a difficult case because the courts have traditionally placed few limits on the government’s border search authority.
Ordinarily, a search warrant based on probable cause of a crime would be needed to examine a person’s laptop, but when a traveler is entering the country, the government’s position is that it does not need a warrant — or even reasonable suspicion. In this case, House was stopped at Chicago’s O’Hare International Airport on a return trip from Mexico.
As a general rule, the U.S. Supreme Court has held that as long as a search is routine or reasonable, the intent of the search does not matter. But the Supreme Court has not ruled on the specific issue of whether searching a laptop with troves of personal data is reasonable without at least some suspicion of a crime.
The government held House’s laptop for 49 days. On it were several years’ worth of e-mails with family, friends and co-workers; passwords to his bank account and workplace computer; confidential messages of the Bradley Manning Support Network about strategy and fund-raising; and lists of potential donors and notes on donor meetings.
“The computer is like an extension of my mind,” House said in an interview. “It is my notes, my writing, locations I’ve been.”
What concerns him, he said, is that the government appeared to be targeting him because of his advocacy work and may now start targeting others he associates with. “All these people working for the Manning Support Network, all of a sudden their names are in the open, and that is most worrisome,” he said.